THE CONSTITUTION ordains: “Any vacancy (in the Supreme Court) shall be filled within ninety days from the occurrence thereof.” Was this mandate violated when Justice Mariano C. Del Castillo took his oath and assumed office in the Supreme Court (and thus actually “filled” the vacancy) only last Aug. 6? His oath taking happened more than 90 days after the “occurrence” of the vacancy on April 30, 2009 when Justice Ma. Alicia Austria-Martinez retired from the Court.

The facts. In contrast, Justice Roberto A. Abad’s appointment seems impervious to a similar attack because he took his oath on Aug. 7, within 90 days from the “occurrence” of the vacancy he filled. Abad replaced Justice Dante O. Tinga, who retired on May 11, 2009.

As in all discussions, let us be clear on the facts. On June 22, 2009, the Judicial and Bar Council (JBC) – after a rather protracted screening process – submitted to Malacañang a list of six nominees to fill up the vacancies created by the retirement of Martinez and Tinga. In a letter dated July 24 but received by the JBC on July 27, Executive Secretary Eduardo Ermita returned the list of six nominees to the JBC and asked for more names.

In its meeting on August 3, the JBC rejected Ermita’s overture. This rejection was instantly communicated to Malacañang on the same date, August 3. Three days later, on August 6, the Palace sent the Supreme Court a document, dated July 29, 2009, appointing Justice Del Castillo. On the same day, August 6, Del Castillo took his oath and assumed office.

Who is/are responsible for the travesty? Not Justice Del Castillo, because he had no participation in the delay. In fact, he took his oath of office on the very day the Court received his appointment. (Procedurally, the Palace sends all judicial appointments to the Supreme Court that in turn informs the appointee thereof.)

Neither can the JBC be faulted. It sent the original list to Malacañang on June 22, well within the 90 days. Note too that the JBC rejected the Ermita overture for more names and returned the original list to the Palace on August 3.

Is the President liable for the breach? In her defense, Malacañang points to the date written on the appointment document, July 29, 2009, which is the 90th day from the “occurrence” of the vacancy on April 30. However, this appointment paper was sent to and received by the Supreme Court only on August 6 – beyond the 90-day constitutional prescription.

Note too that on July 29 (the purported date of the appointment), the original list of six nominees was back in the hands of the JBC. How then could the Palace have acted on the list it did not have? Was the appointment “back-dated” to circumvent the violation?

Waiver theory. In any event, regardless of who was responsible for the delay, the vacancy was actually filled only on August 6 “beyond the 90-day period – when Del Castillo took his oath. So, I go back to the hard question: Is Del Castillo’s assumption of office valid?

In their joint letter to the JBC dated July 30, 2009, urging the council to reject Ermita’s request for more names, former Senate President Jovito R. Salonga, Senator Francis “Kiko” Pangilinan, Dean Marvic M.V.F. Leonen and lawyer Ma. Carolina Legarda argued that “the failure of the President to act on the list of nominees … indicates her waiver to make the appointment.”

The vacancy, they added, could be filled up only by “the next President based on a list to be transmitted by the JBC after June 30, 2010.” This stance led many radio and TV commentators to opine that the appointment of Justice Del Castillo was illegal.

I believe however that although the 90-day limit may have been crossed, the appointment issued to Del Castillo is valid. This is similar to the deadlines given to court decisions. Per our Charter, cases “must be decided or resolved within 24 months from date of submission for the Supreme Court, and unless reduced by the Supreme Court, 12 months for all lower collegiate courts, and three months for all other lower courts.”

Our Supreme Court has penalized lower court magistrates for breaching these deadlines, but their decisions – though issued late – remained valid. By the same token, I think that although issued beyond the 90-day limit, the Del Castillo appointment is still valid without prejudice to punitive actions on those responsible for the delay.

The Constitution obviously intends to prevent the old tactic of Ferdinand Marcos of retaining his dominance of the Supreme Court by delaying its full composition. Invalidating Del Castillo’s assumption of office would frustrate this intent.

Nonetheless, the delay could be a ground for the removal from office of the President if her accusers can prove that the violation is “culpable” and can convince at least one-third of all the members of the House of Representatives to “initiate” her impeachment, a pipe dream at the moment considering her tight hold on the House.

The alleged “back-dating” of the appointment papers of Del Castillo could also be criminally prosecuted after the President exits from power (while in office she is immune from suits but not from investigation) if her accusers can prove the elements of falsification (or other crimes) before the Ombudsman.

To summarize, I believe that the appointment and assumption of office of Justice Mariano C. Del Castillo is valid without prejudice to the prosecution of and imposition of sanctions against those proven to be responsible for the delay in the appointment process.